Belgium Introduces The Legal Concept of "Wrongful Life"

Wrongful death is a claim in common law jurisdictions against a person who can be held liable for a death. The claim is brought in a civil action, usually by close relatives, as enumerated by statute.
Wikipedia

Now Belgium introduces the legal concept of wrongful life:

The Journal of General Liability Insurance has issued an important ruling of the Court of Appeal of Brussels of 21 September 2010 (RGAR, 2010, No. 14675) in a case concerning a child born disabled as a result of a Prenatal diagnosis wrong.

Can parents sue on behalf of their child, in an action for damages suffered by him as an individual?

The Court of Appeal in Brussels responds positively to this extremely sensitive issue. After noting that "certainly, the misdiagnosis did not cause the child's disability, which existed before the error and which could not be remedied," the Court considers that, "however, the injury that must be compensated is not the disability itself, but the fact of being born with such disabilities."
Thus, the child, through the vote of his parents, may claim compensation from physicians who, through their fault, hurt its legitimate interest to be a therapeutic abortion, as granted that his mother would have appealed if she had been duly informed of the condition during pregnancy. In the opinion of the Court, by entering in the Penal Code article 350 , paragraph 2, 4, authorizing therapeutic abortion, "the legislature must have intended to help avoid giving birth to children with serious abnormalities, having regard not only to the interests of the mother but also to that of the unborn child itself."

This is the first time in Belgium that an appellate court receives such a wrongful life action (wrongful life ). Previously, a trial court of first instance of Brussels, released April 21, 2004, had adopted a similar solution, about a child with Down syndrome.

These decisions are not unlike the famous case Parakeet who had led the French Supreme Court, meeting in plenary session to vote in the same direction (Case 17 November 2000, confirmed by the judgments of 13 July 2001 and 28 November 2001). These cases aroused a wave of protest in civil society and divided the legal community. An end was put to this Court by the adoption of Act No. 2002-304 of 4 March 2002. [translation based on Google Translation and reverso.net as posted by Steve Colby in comments here]

I thought this was a novel judicial idea and that Belgium was the first--but just now I did a quick search and as it turns out, the concept of wrongful life has already taken hold in the US:

Wrongful life is the name given to a legal action in which someone is sued for failing to prevent the birth of a severely disabled child.

Typically a child and the parents will sue a doctor or a hospital for failing to provide information about the disability during the pregnancy, or a genetic disposition before the pregnancy. Had the mother been aware of this information, it is argued, she would have had an abortion, or chosen not to conceive at all.

Historically, only parents could sue for their own damages incurred as a result of the birth of a disabled child (e.g., the mother's own pregnancy medical bills and cost of psychiatric treatment for both parents' emotional distress resulting from the realization that their child was disabled). This cause of action is known as wrongful birth. But the child could not sue for his or her own damages, which were often much more substantial, in terms of the cost of round-the-clock personal care and special education.

In four U.S. states, the child is allowed to bring a wrongful life cause of action for such damages. In 1982, the Supreme Court of California was the first state supreme court to endorse the child's right to sue for wrongful life, but in the same decision, limited the child's recovery to special damages.[1] This rule implies that the child can recover objectively provable economic damages, but cannot recover general damages like subjective "pain and suffering"—that is, monetary compensation for the entire experience of having a disabled life versus having a healthy mind and/or body.

Most other jurisdictions, including New York[2], England[3] and Ontario[4], have refused to allow the wrongful life cause of action.

So all that Belgium did was extend the limit on what children could sue for.
I had no idea that such an idea was on the books.

Did you?

Hat tip: Kathryn Jean Lopez
Technorati Tag: Wrongful Life.